Comment by joshuaheard
8 years ago
Twitter is a reflection of society. Twitter can't fix society, only censor its speech, which never works.
Congress needs to look at extending First Amendment protections for users of social media such as Twitter, Facebook, and Google.
I very strongly disagree with applying the First Amendment protections to data hosted on private infrastructure. 4chan more or less takes the "free speech" approach and it's a goddamned disaster.
People honestly can't even handle free speech in real-life, let alone anonymously on the internet. We literally have to create barriers around Planned Parenthood because people use free speech to berate women who are already suffering.
Speech needs to be protected, but when it starts to encroach on my pursuit of happiness it's a problem. Facebook, Twitter, etc don't need to become chan sites.
First amendment jurisprudence, thankfully, disagrees with you. But first, some history.
For most of modern history, speech has been censored in some form or another by governments. Naturally so, as any kind of divergent thinking can be dangerous to power structures (this hasn't gone away). In 1663, John Twynn, was tried and executed in England for printing material that suggested that perhaps the monarchy should be beholden to the people. The Sedition Act of 1798 was passed by the American Congress and signed into law by President John Adams. Namely, it prescribed fines and imprisonment for those who "write, print, utter, or publish... any false, scandalous and malicious writing" against the government. This was used to jail several members of Congress, among others.
Modern free speech jurisprudent didn't start to develop until as late as 1917. The Espionage Act of 1917 was enacted at the start of World War I to prevent actions that were seen as unfavorable to the war. The Supreme Court upheld the law as not violating freedom of speech in Schenck v. United States. I believe there was a subsequent 1917 or 1918 case that began to turn the tide (the reference escapes me at the moment and I'm at work), but it wasn't until 1969 in Brandenburg v. Ohio that the Supreme Court ruled that inflammatory speech is protected as long as it satisfies a two-prong test:
1. The speech is "directed to inciting or producing imminent lawless action," AND 2. The speech is "likely to incite or produce such action."
The case concerned an Ohio Ku Klux Klan member who was recorded saying particularly horrid and denigrating things about African Americans, but, notably, nothing specifically threatening. The Supreme Court upheld your right to say things like "I think we should kill all Jews" because, although a terrible thing to say, statements like that aren't imminently encouraging lawless action and not likely to do so.
Past that point, the Supreme Court has regularly upheld this interpretation of the first amendment. The best argument against a more European, say, interpretation of the first amendment is that, simply: governments only ever censor speech that they don't like. That's why the Espionage Act was used to incarcerate the likes of Emma Goldman and not, say, the people who were helping organize lynchings. If you were to enact hate speech legislation, and history bears this out, the people most affected are the minorities: black people, Jews, Muslims, LGBTQ people, pacifists, communists, anarchists, socialists, etc. Think about all of the police that shoot unarmed black men. Can you seriously imagine police forces across America protecting the speech of someone that calls for the abolition of the institution that person belongs to?
So that's a brief history and law lesson (caveat: I am neither a lawyer nor a historian). This is certainly a larger discussion to have, and I very much enjoy debating things like hate speech legislation and speech restriction in general, but I'll leave you with this for now.
None of this is relevant to whether Twitter want to be complicit in publishing this speech which they are under no obligation to do.
Edit: I'm also wondering why the great examples of free speech that people reach for are always racism. It's not really surprising that racism is allowed in a country founded on racism. It might be more interesting to look at what has actually been banned in American free speech law over the years.
The "ag-gag" laws that were recently overturned are one thing I'm thinking of. https://en.wikipedia.org/wiki/Food_libel_laws are another.
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Absolutely! Just like how private malls have been ruled in some jurisdictions to be a sort of public space despite being privately-owned, I think it's important to recognize that the sheer size of some social media sites, combined with the dominant network effects, makes them something like virtual public spaces.
The alternative is that we end up with a future where more and more of life becomes privately owned and we end up either in online 'company towns' for our social interactions, or else we end up exiled to virtual ghettos where we are unable to interact with others if we go against whatever the dominant ideology happens to be.
Especially given how much these private companies act as the public commons nowadays. Between network effects and wide proliferation, the "just go elsewhere" defense doesn't work too well anymore.
I think it's workable. Once you both market yourself as an open platform for discussion (as Twitter and many other social sites have done) and reach a certain level of use (which I think we can debate on, but certainly Twitter who has world leaders making official pronouncements on it would clear that bar), some kind of oversight should kick in to prevent abuses.
I don't like the idea of letting a government body regulate how a communications company how to run their business.
Ignoring the moral implications of holding a gun to a business owner's head and forcing them to run their business the way you want, are we not opening up the doors for legitimate censorship down the line?
If we're concerned about world leaders making official pronouncements on Twitter, why not just dictate that they don't do that and instead utilize a different platform? Something decentralized preferably.
We already do that with phone companies, and up until very recently we almost did that with internet providers (by way of Title II common carrier status).
It wouldn't be that much of a legal stretch to say that the service is acting as a common carrier, and that they can either advertise honestly or be regulated. Twitter wants to have it both ways, where they can advertise as a space for public discussion when it suits them and fall back on the "private company, our back yard" defense when their behavior is questioned. This is the real problem.. there's nothing whatsoever wrong with operating a curated service as long as you are clear that's what you're doing.
As an alternative (and entirely off-the-cuff) legal theory, the communications decency act holds a provider harmless for what their users post, but critically, they lose that protection once they start exercising editorial control.
I'd aay that most large social networks already crossed that line. I also think most companies would ease up on the censorship if they knew that the alternative left them open to suit for libelous etc. content on their service.
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>I don't like the idea of letting a government body regulate how a communications company how to run their business.
This makes me wonder if phone companies have the right to disconnect customers based on political speech they don't like.
If, say, Verizon decided they didn't want to "facilitate extremism," and decided to cancel the plans of politically unpopular organizations or its members, is that allowed? What if they decide that they don't want to have any of that 'filth' on their network, and disconnect anyone communicating to/from Verizon numbers if they are politically undesirable?
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If Twitter can't figure out a way to build a platform that does not damage society without violating First Amendment protections, then perhaps Twitter should cede its responsibility to the platform but opening the social graph up to let anyone build any version of it on top.
Congress needs to follow through I removing content liability immunity to sites that thought police. The method is already there is law, as usual it is a lack of enforcement.